Through the present Constitutional petition Mst. Akhtar Bibi petitioner has requested for an order for production and release of Nawaz Ali and Muhammad Altaf, two brothers of the petitioner, who were allegedly taken away by Respondent No, 3 on 3.9.2007 along with other members of Federal Intelligence Unit (hereinafter referred to as FIU) and afterwards the detenus were detained by Respondents Nos, 2 and 3 for nearly one and a half year and then on learning about the filing of the instant petition, according to the petitioner's stance, Nawaz Ali, alleged detenu No, 1, was convicted and sentenced under the Court Martial by a Field General Court Martial to four years on the allegation of espionage and leakage of military secrets to the enemy being employees as driver and Mali (gardener) in the Ordnance Depot, Lahore Cantt, while trial of Muhammad Altaf, alleged detenu No, 2, is in progress by a Field General Court Martial.
2. Learned counsel for the petitioner has submitted that in fact the detenus are in illegal custody of the respondents as Respondent No, 3, who is a Subedar in FIU, used to visit the village of the detenus and used to visit the Dera of the opponents of the detenus and indulged in drinking parties which was strongly objected to by the detenus and he, through abuse of his authority as Subedar in the FIU, then managed to involve the detenus on false allegations and got them detained for fifteen months and then secured the conviction and sentence of Nawaz Learned counsel submitted with reference to Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 SC 632) and Federation of Pakistan and two others Vs. Khurshid Ahmed and another (1999 SCM R 664) that Pakistan Army Act, 1952, was not applicable to the detenus/brothers of the Petitioner Neither there was any absolute bar on the exercise of jurisdiction under Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, and submitted that the detenus are petty employees of Ordnance depot and in no case they were in a position to cause any damage to the Ordnance Depot and the Country by sharing any secret information with the enemies of Pakistan. Further submitted that the record of the Field General Court Martial may be requisitioned for examination by this Court and in case after examining the record this Court feels satisfied that the allegations leveled against the petitioner's brothers are true, the petition may be dismissed.
3. Learned. Standing Counsel. for Federal Government, Respondent No, 1 assisted by representative of Respondent No, 2, has opposed the contentions and submitted with reference to parawise comments and reply submitted on behalf of respondents that the Court Martial was held to be part of the ordinary law of land through a verdict given by the Honourable Supreme Court in Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 S.C. 632), and also submitted with reference to Rehmat Ali Johar Vs. Additional Chief Engineer and others (PLD 2008 S.C. 301) that civil employees working in any Branch of the Army were subjected to trial by Field General Court Martial and though civilian employees were not subject of definition of active service as contained in Section 8(1) of Pakistan Army Act, 1952, but was covered by notification dated 3.1.1975 issued under Section 7 of Pakistan Army Act, 1952, for the purpose of Field General Court. Martial. He submitted that the alleged detenus were never kept in illegal confinement and were treated in accordance with law and submitted with reference to parawise comments that appeal against the conviction and sentence is provided before Army Courts of Appeal as provided by Section 133(b) of Pakistan Army Act, 1952. He, therefore, submitted that since appeal is provided, there is no jurisdiction with this Court to allow the writ petition. Also submitted that trial of Muhammad Altaf is pending adjudication before the Field General Court Martial, therefore, prayed for dismissal of the petition.
4. I have heard the arguments of learned counsel for the parties and also perused the parawise comments submitted on behalf of respondents.
5. Since the alleged detenus, the two brothers of the petitioner, are employees in the Ordnance Depot at Lahore Cantt, thus they are subjected to Pakistan Army Act, 1952, in view of the notification dated 3.1.1975 issued under Section 7 of the Pakistan Army Act and can be tried validly by the Field General Court Martial on allegations which fall within the mischief of offences under the Pakistan Army Act, 1952 and the law laid down by the Honourable Supreme Court in the case of Rehmat Ali Johar us. Additional Chief Engineer and others '(PLD 2008 S.C. 301) leaves no doubt on the jurisdiction of the Military Courts to hold trial of the civilian. employees of the allied departments of the Pakistan Army including Ordnance Depot and as Nawaz Ali has been convicted and sentenced by a Field General Court Martial and an appeal is provided in the Statute (Pakistan Army Act, 1952), therefore, there is no jurisdiction with this Court to interfere into the working of the respondents and scheme of things provided by the Pakistan Army Act. As regards Muhammad Altaf, the other brother of the petitioner, trial against him is pending adjudication before Field General Court Martial and it may be mentioned with advantage that the Honourable Supreme Court in Mrs. Shahida Zahir Abbasi and four others Vs. President of Pakistan and others (PLD 1996 S.C. 632), had held that Court Martials are held under the criminal procedure for holding of Court Martials and cannot be equated with Military Courts established under extra-ordinary circumstances through promulgation of Martial Law and by suspension of ordinary laws of the land. It was also held in the case of Federation of Pakistan and two others Vs. Khurshid Ahmad and another (1999 SCM R 664) by the Honourable Supreme Court that by virtue of Section 2(i)(c) of Pakistan Army Act, 1952, read with notification dated 3.1.1975 issued under Section 7 of Pakistan Army Act, 1952, civilians other than army personnel on active service attached with the army departments were subject to exercise of jurisdiction by Field General Court Martial, therefore, said case law is also not helpful to the petitioner cited by learned counsel for the petitioner.
6. Since, the brothers of the petitioner are being dealt with in accordance with law and appeal against their conviction and sentence is also provided under Section 133(b) of the Pakistan Army Act, 1952, therefore, it cannot be said that petitioner's brothers were detained by Respondents Nos, 2 and 3 without any lawful course and in unlawful manner. Their detention cannot be termed to be illegal. Therefore, there is no jurisdiction with this Court to interfere into the ordinary working of a lawful administration/department of the respondents. Petition is without merit and is, therefore, dismissed, with no order as to costs.